Problems Relating to Import & Export of Patented Products

When an inventor obtains a patent, he does not obtain the right to make, use or vend the
patented product but the right to refrain others from making, using or vending it. A patent
holder can refrain others from making, using or vending his patented product by filing a suit
for infringement, in the domestic market. As a general rule, the patent holder has the
exclusive right to make, use, sell and import the patented invention. This means that the
patent holder can prevent others from importing or exporting products that use the patented
invention without permission. If someone imports or exports a product that infringes on a
patent, the patent holder can take legal action to stop the infringement and seek damages.
However, there are some exceptions to this general rule. For example, in some countries,
there are specific exemptions for importing or exporting patented products for certain
purposes, such as research or personal use. Additionally, some countries may allow for
parallel imports, where a product that is legitimately sold in one country can be imported and
sold in another country without the permission of the patent holder.

It's also worth noting that the laws regarding patents and import/export can vary between
countries, so it's important for companies to be familiar with the laws in each country where
they plan to do business. In some cases, it may be necessary to obtain licenses or other
permissions from patent holders before importing or exporting products that use their
patented inventions.

As an importer or exporter of patented products, the following things shall be considered:

1. Intellectual property rights: Patents are territorial, meaning that they provide
exclusive rights to the patent holder in the country where the patent is granted.
Therefore, before importing or exporting a patented product, it's important to ensure
that you have the necessary permissions or licenses from the patent holder to avoid
infringing their rights.
2. Licensing: If you plan to import or export a patented product, you may need to obtain
a license from the patent holder. A license grants you the right to use the patent in
exchange for a fee or royalty payment. In some cases, the patent holder may have
exclusive rights to import or export the product, or they may have already licensed the
rights to someone else.
3. Customs regulations: Importing or exporting patented products may be subject to
customs regulations, including requirements for import licenses or permits,
 inspections, and tariffs or taxes. It's important to be aware of these regulations and to
comply with them to avoid legal penalties.
4. Competition laws: Importing or exporting patented products may raise concerns
under competition law, particularly if the patent holder has a dominant market
position in the relevant market. To avoid violating competition laws, it's essential to
ensure that your import or export activities do not harm competition or restrict trade.
5. Ethical considerations: Importing or exporting patented products can raise ethical
concerns, particularly if the product is a life-saving drug or medical device. It's
important to balance the potential economic benefits of import/export against
concerns about equity and access to healthcare.

Overall, importing and exporting patented products requires careful consideration of legal,
economic, and ethical factors. It's important to seek legal advice and conduct due diligence
before proceeding with any import or export activities.

The Customs Act, 1962 prohibits import of those goods that infringed intellectual property.
Under Section 111, the Central Government can prohibit import or export of goods that
infringed patents, trademarks or copyrights, by issuing a notification. It also covered
prevention of contravention of any law for the time being in force. Further, Section 111 and
1132 of the same Act empowered the Customs to confiscate such imported and exported
goods, respectively.

PROBLEMS RELATING TO EXPORT AND IMPORT OF PATENTED PRODUCTS:

Export and import of patented products can give rise to several legal and practical challenges.
Some of the major problems that can arise are:

1. Infringement of Patents: Patented products can be exported or imported without the

1
Ms. Madhuri Ayyer, “Analysis of Intellectual Property Rights ( Imported Goods) Enforcement Rules, 2007”,
09/03/2023, https://www.khuranaandkhurana.com/2013/02/04/analysis-of-the-intellectual-property-rights-
imported-goods-enforcement-rules-2007/.
2
Ibid 1.
 2. Custom Enforcement: Customs officials may seize goods that are suspected of
infringing on patents. The importer or exporter may be required to prove that the
goods are not infringing, which can be time-consuming and costly.
3. Licensing Issues: Exporting patented products may require obtaining a license from
the patent owner. The licensee may be restricted from exporting the products, or may
require additional approval from the patent owner.
4. Regulatory Issues: Exporting and importing patented products may also require
compliance with various regulatory requirements, including export controls, import
regulations, and product safety standards.
5. Competition Issues: Exporting and importing patented products can also raise
competition concerns, such as monopolization, market domination, and price
discrimination.
6. Product Quality Issues: Importing patented products from a different country may
involve differences in product quality standards, which can result in challenges in
meeting local regulations and consumer expectations.
7. Pricing concerns: Exporting or importing patented products can raise pricing
concerns, particularly if the products are essential medicines or medical devices. High
prices can make these products inaccessible to people in low-income countries,
leading to concerns about equity and access to healthcare.
8. Intellectual property disputes: Exporting or importing patented products can also
lead to intellectual property disputes with other companies or countries. This can lead
to legal battles and restrictions on the import or export of the product, affecting supply
chains and access to these products.
9. Ethical concerns: Exporting or importing patented products can raise ethical
concerns, particularly if the products are essential medicines or medical devices. High
prices, restrictions on access, and lack of availability can lead to concerns about
equity and access to healthcare.
10. Market dominance: Exporting or importing patented products can also lead to
market dominance by the patent holder or importers. This can limit competition and
innovation, leading to higher prices and reduced access to these products.

To avoid these problems, it is important for both exporters and importers to obtain proper
legal advice and ensure compliance with all relevant laws and regulations. On May 8, 2007,
the Central Government issued Notification No. 49/2007-Customs (N.T.), that prohibited the
import of the following goods, subject to conditions and procedures as specified in the
Intellectual Property Rights (Imported Goods) Enforcement Rules,2007:

a) the product made or produced beyond the limits of India and intended for sale for
which a patent is in force under the Patents Act,1970;
b) the product obtained directly by the process made or produced beyond the limits of
India and intended for sale, where patent for such process is in force under the Patents
Act 1970.

Conclusion:

Such infringing or counterfeiting goods have a drastic impact on the right holder and thus, on
the market economy. It is important on part of the Government to extend the purview of the
Rules to enforce controlling of all kinds of infringing goods. A patent is granted by a specific
country's patent office and provides exclusive rights to the patent holder in that country.
Thus, exporting a patented product without the patent holder's permission can be an
infringement of their rights